PART VI.
OF THE LAW CONCERNING REAL PROPERTY.
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LECTURE L.
OF THE FOUNDATION OF TITLE TO LAND.
IN passing from the subject of personal to that of real property, the
student will immediately perceive that the latter is governed by rules
of a distinct and peculiar character. The law concerning real properly
forms a technical and very artificial system; and though it has felt the
influence of the free and commercial spirit of modern ages, it is still
very much under the control of principles derived from the feudal
policy. We have either never introduced into the jurisprudence of this
country, or we have, in the course of improvements upon our municipal
law, abolished all the essential badges of the law of feuds; but the
deep traces of that policy are visible in every part of the doctrine of
real estates, and the technical language, and many of the technical
rules and fictions of that system, are still retained.
It is a fundamental principle in the English law, derived from the
maxims of the feudal tenures, that the king was the original proprietor
of all the land in the kingdom, and the true and only source of title.
[1] In this country we have adopted the same principle, and applied it
to our republican governments; and it is a settled and fundamental
doctrine with us, that all individual title to land within the United
States, is derived from the grant of our own local governments, from
from that of the United States, or from the crown, or royal chartered
governments established here prior to the revolution. This was the
doctrine declared in this state, in the case of Jackson v. Ingraham [2]
and it was held to be a settled rule, that our courts could not take
notice of any title to land not derived from our own state or colonial
government, and duly verified by patent. Even with respect to the Indian
reservation lands, of which they still retain the occupancy, the fee is
supposed to reside in the state, and the validity of a patent has not
hitherto been permitted to be drawn in question, under the pretext that
the Indian right and title as original lords of the soil, had not been
extinguished. This was assumed to be the law of the land, by the Supreme
Court of this state in Jackson v. Hudson, [3] and the same doctrine has
beep repeatedly declared by the Supreme Court of the United States. [4]
The nature of the Indian title to lands lying within the jurisdiction of
a state, though entitled to be respected by all courts until it be
legitimately extinguished, is not such as to be absolutely repugnant to
a seisin in fee on the part of the government within whose jurisdiction
the lands are situated. Such a claim may be consistently maintained,
upon the principle which has been assumed, that the Indian title is
reduced to mere occupancy.
The history and grounds of the claims of the European governments, and
of the United States, to the lands on this continent, and to dominion
over the Indian tribes, has been largely discussed, and the solidity of
that claim, to a qualified extent, explicitly asserted, by the courts of
justice in this country. In Johnson v. M'Intosh, [5] it was stated as an
historical fact, that on the discovery of this continent by the nations
of Europe, the discovery were considered to have given to the government
by whose subjects; or authority it was made, the sole right of acquiring
the soil from the natives as against all other European powers. Each
nation claimed the right to regulate for itself, in exclusion of all
others, the relation which was to subsist between the discoverer and the
Indians. That relation necessarily impaired, to a considerable degree,
the rights of the original inhabitants, and an ascendancy was asserted
in consequence of the superior genius of the Europeans, founded on
civilization and christianity, and of their superiority in the means,
and in the art of war. The European nations which respectively
established colonies in America, assumed the ultimate dominion to be in
themselves, and claimed the right to grant a title to the soil, subject
only to the Indian right of occupancy. The practice of Spain, France,
Holland and England, proved the very general recognition of this
principle. The United States adopted the same principle, and their
exclusive right to extinguish the Indian title by purchase or conquest,
and to grant the soil, and exercise such a degree of sovereignty as
circumstances required, has never been judicially questioned. The rights
of the British government within the limits of the British colonies,
passed to the United States by the force and effect of the act of
independence, and the uniform assertion of those rights by the crown, by
the colonial governments, by the individual states, and by the Union,
is, no doubt, incompatible with an absolute title in the Indians. That
title has been obliged to yield to the combined influence which
military, intellectual, and moral power, gave to the claim the European
emigrants.
The whites assert the right to a qualified dominion over the Indian
tribes, and to regard them as enjoying no higher title to the soil than
that founded on simple occupancy, and to be incompetent to transfer
their title to any other power than the government which claims the
jurisdiction of their territory by right of discovery. This assumed
claim or right arises from the necessity of the case. To leave the
Indians in possession of the country was to leave the country a
wilderness, and to govern them as a distinct people, or to mix with
them, and admit them to an intercommunity of privileges, was impossible
under the circumstances of their relative condition. The peculiar
character and habits of the Indian nations, rendered them incapable of
sustaining any other relation with the whites than that of dependence
and pupilage. There was no other way of dealing with them then that of
keeping them separate, subordinate, and dependent, with a guardian care
thrown around them for their protection. The rule that the Indian title
was subordinate to the absolute, ultimate title of the government of the
European colonists, and that the Indians were to be considered as
occupants, and entitled to protection in peace in that character only,
and incapable of transferring their right to others, was the best one
that could be adopted with safety. The weak and helpless condition in
which we found the Indians, and the immeasurable superiority of their
civilized neighbours, would not admit of the application of any more
liberal and equal doctrine to the case of Indian lands and contracts. It
was founded on the pretension of converting the discovery of the country
into a conquest, and it is now too late to draw into discussion the
validity of that pretension, or the restrictions which it imposes. It is
established by numerous compacts, treaties, laws, and ordinances, and
founded on immemorial usage. The country has been colonized and settled,
and is now held by that title. It is the law of the land, and no court
of justice can permit the right to be disturbed by speculative
reasonings on abstract rights.
This is the view of the subject which was taken by the Supreme Court of
the United States; and the several local governments, both before and
since our revolution, have always acted upon the principles there laid
down. It was shown, in Goodell v. Jackson, [6] that the government of
New-York had always claimed the exclusive right to extinguish Indian
titles to lands within their jurisdiction, and had held all individual
purchases from the Indians, whether made from them individually, or
collectively as tribes, if made without the previous authority of the
government, to be null and void. The legislature of Virginia, in 1779,
asserted the same exclusive right of pre-emption, and the colonial and
state authorities throughout the Union, always negotiated with the
Indians within their respective territories as dependent tribes,
governed, nevertheless, by their own chiefs and usages, and competent to
act in a national character, but placed under the protection of the
whites, and owing a qualified subjection, so far as was requisite for
the public safety. The Indian tribes within the territorial jurisdiction
of the government of the United States, are treated in the same manner,
and the numerous treaties, ordinances, and acts of Congress, from the
era of our independence down to the present time, establish the fact.
But while the ultimate right of our American governments to all the
lands within their jurisdictional limits, and the exclusive right of
extinguishing the Indian title by possession, is not to be shaken; it is
equally true, that the Indian possession is not to be taken from them,
or disturbed, without their free consent, by fair purchase, except it be
by force of arms in the event of a just and necessary war.
If the settled doctrine on the subject of Indian rights and titles was
now open for discussion, the reasonableness of it might be strongly
vindicated on broad principles of policy and justice, drawn from the
right of discovery; from the sounder claim of agricultural settlers over
tribes of hunters; and from the loose and frail, if not absurd title of
wandering savages to an immense continent, evidently designed by
Providence to be subdued and cultivated, and to become the residence of
civilized nations.
When the country, now within the dominion of the United States, was
first discovered by the Europeans, it was found to be, in a great
degree, a wilderness, sparcely inhabited by tribes of Indians, whose
occupation was war, and whose subsistence was drawn chiefly from the
forest. Their possession was good and perfect to the extent requisite
for subsistence and reasonable accommodation, but beyond that degree
their title to the country was imperfect. Title by occupancy, is limited
to occupancy in point of fact. Erratic tribes of savage hunters and
fishermen, who have no fixed abode, or sense of property, and are
engaged constantly in the chase or in war, have no sound or exclusive
title either to an indefinite extent of country, or to seas and lakes,
merely because they are accustomed, in search of prey, to roam over the
one, or to coast the shores of the other. Vattel had just notions of the
value of these aboriginal rights of savages, and of the true principles
of natural law in relation to them. He observed, that the cultivation of
the soil was an obligation imposed by nature upon mankind, and that the
human race could not well subsist, or greatly multiply, if rude tribes,
which had not advanced from the hunter state, were entitled to claim and
retain all the boundless forests through which they might wander. If
such people will usurp more territory than they can subdue and
cultivate, they have no right to complain, if a nation of cultivators
puts in a claim for a part. [7] Though the conquest of the half
civilized empires of Mexico and Peru was a palpable usurpation, and an
act of atrocious injustice, the establishment of the French and English
colonies in North America was entirely lawful; and the colonists, have
not deviated from the precepts of the law of nature, in confining the
natives within narrower limits. [8]
The settlement of the country, now composing these United States, has
been attended with as little violence and aggression, on the part of the
whites, in a national point of view, as were compatible with the fact of
the entry of a race of civilized men into the territory of savages, and
with the power and the determination to reclaim and occupy it. Vattel
extols the moderation of William Penn; and of the first settlers of
New-England, who are understood to have fairly purchased of the natives,
from time to time, the land they wanted to colonize. But wars with the
Indians resulted, almost inevitably, from the intrusions of the whites,
and especially when the spirit of the institutions of Penn was wanting.
The origin of those wars is not imputable to any unkindness or injustice
on the part of the colonial governments, through there were, at times,
acts of fraud and violence committed by individuals among the colonists,
prompted by cupidity, and a consciousness of superior skill and power,
as well as springing from a very blunt sense of the rights of savages.
The colony of Massachusetts, in 1633, [9] prohibited the purchase of
lands from the natives, without license from the government; and the
colony of Plymouth, in 1643, passed a similar law. Very strong and
authentic evidence of the distinguished moderation and entire equity of
the New-England governments towards the Indians, is to be found in the
letter of Governor Winslow, of the Plymouth colony, of the 1st May,
1676; in which he states, that before King Philip's war, the English did
not possess one foot of land in that colony, but what was fairly
obtained, by honest purchase from the Indian proprietors; and that by
law none could purchase, or receive by gift, any lands of the Indians,
without the knowledge and allowance of the general court. [10]
But the causes of wars with the Indians were inherent in the nature of
the case. They arose from the fact of the presence and location of white
people; and the Indians had the sagacity to perceive, what the
subsequent history of this country has abundantly verified, that the
destruction of their race must be the consequence of the settlements of
the English colonists, and their extension over the country. [11] In all
the wars of the whites with the Indians, the means and the power of the
parties were extremely unequal, and the Indians were sure to come out of
the contest with great loss of numbers and territory, if not with almost
total extermination. Their usages in war were ferocious and cruel; but
there was still much in the Indian character, in their earlier and
better state, to excite admiration, and in their sufferings, at all
times, to excite sympathy. If wars with them were never unjustly
provoked by the colonial governments or people, they were, no doubt,
stimulated, on the part of the Indians, by a deep sense of injury, by a
view of impending danger, by the suggestions of patriotism, and by a
fierce and lofty spirit of national independence. Their history appears
under manifest disadvantage to them, and with scarcely a cheering page
to the honour of their race. We have been called too frequently to
delineate the darkest traits in their character, and have told their
story according to our prejudices and partial views. Being ignorant of
letters, they have had no annalists of their own; no native poets or
historians to transmit to posterity the specimens of their genius, to
portray their feelings, to record their grievances, to vindicate their
character, or to perpetuate the memory of their daring achievements.
The government of the colony of New-York has a claim equally fair with
that of any part of America, to a policy uniformly just, temperate, and
pacific, towards the Indians within the limits of its jurisdiction. The
Indian titles have always been respected and extinguished with the
consent of the natives, and by fair means. [12] The fierce and
formidable confederacy of the Six Nations, of which the Mohawks were the
head, placed themselves and their lands under the protection of our
government from the earliest periods of the colony administration. The
friendship of the parties was cemented by treaties, alliances, and kind
offices. It continued unshaken from the first settlement of the Dutch on
the shores of the Hudson and the Mohawk, down to the period of the
American war; and the fidelity of that friendship is shown by the most
honourable and the undoubted attestations. And when we consider the long
and distressing wars in which the Six nations were involved on our
account with the Canadian French, and the artful means which were used
front time to time to detach them from our alliance, it must be granted,
that the faith of treaties has no where, and at no time, been better
observed, or maintained with a more intrepid spirit, than by those
generous barbarians. [13]
The government of the United States, since the period of our
independence, has also pursued a steady system of pacific, just, and
paternal policy towards the Indians, within their wide spread
territories. The United States have never insisted upon any other claim
to the Indian lands, than the right of pre-emption. upon fair terms; and
the plan of permanent annuities, which the United States, and which the
state of New-York, among others, have adopted, as one main ingredient in
the consideration of purchases, has been attended with beneficial
effects. The efforts of the national government to protect the Indians
from wars with each other, from their own propensity to intemperance,
from the frauds and injustice of the whites, and to impart to them some
of the essential blessings of civilization, have been steady and
judicious, and reflect lustre on our national character. This affords
some consolation under a view of the melancholy contrast between the
original character of the Indians, when the Europeans first visited
them, and their present condition.. We then found them, a numerous,
enterprising, and proud spirited race; and we now find them, a feeble
and degraded remnant, rapidly hastening to annihilation. The
neighbourhood of the whites seems, hitherto, to have had an immoral
influence upon Indian manners and habits, and to have destroyed all that
was noble and elevated in the Indian character. They have generally, and
with some very limited exceptions, been unable to share in the
enjoyments, or to exist in the presence of civilization; and judging
from their past history, the Indians of this continent appear to be
destined, at no very distant period of time, to disappear with those
vast forests which once covered the country, and the existence of which
seems essential to their own. [14]
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1. 2 Blacks. Com. 51. 63. 86. 105.
2. 4 Johns. Rep. 163. Jackson v. Waters, 12 Johns. Rep. 365. S.P.
3. 3 Johns. Rep. 376.
4. Fletcher v. Peck, 6 Cranch's Rep. 87. Johnson v. M'Intosh, 8 Wheat.
Rep. 543.
5. 8 Wheat Rep. 543.
6. 20 Johns. Rep. 693 This case was argued and decided in March, 1823.
at Albany, and concurrently, in point of time, with that of Johnson v.
M'Intosh, at Washington; and the entire coincidence in the doctrine of
the two cases, is very apparent, and evidence of the general sense of
the nation.
7. Duet des Gens, b. 1. sec. 81.
8. Ibid. b 1. sec. 209.
9. Hutchinson's History of Massachusetts, vol. i. 5. 283. Holmes'
American Annals, vol. i. 184.
10. Hazard's Collection of State Papers, vol. ii. 531 -- 534. Holmes'
American Annals, vol. i. 435. See also an account of the various
purchases from the Indians, in that part of Massachusetts which is now
the state of Maine, between the years 1643 and 1675, in Sullivan's
History of the District of Maine, p. 143 -- 149.
11. The war of the Pequots, in 1637, and of the confederacy of Indian
nations formed in 1675, by Metacom, the sachem of the Wampanoags,
commonly called King Philip, would seem to have been engendered by these
patriotic views on the part of the Indians.
12. On the first settlement of the English at New-York, in 1665, it was
ordained, that no purchase of lands from the Indians should be valid
without the governor's license executed in his presence, and this
salutary check to fraud and injustice was continued (Smith's History of
New York, p. 39. edit. 1792) This has been the invariable American
policy down to this day; and the prohibition of individual purchases of
Indian lands without the consent of the government, has been made even a
constitutional provision in some of the states; as, for instance, in
New-York, Virginia, and North Carolina.
13. Colden's History of the Five Nations of Canada dependent on the
Province of New York, vol. i. 34. et passim. The confederacy of the Five
Nations, (and which was known as the confederacy of tile Six Nations
after the Tuscaroras were admitted into the Union,) was distinguished,
from the time of the first discovery of the Hudson down to the war of
1756, for its power and martial spirit. At the close of the seventeenth
century, that confederacy was computed to contain 10.000 fighting men;
but their decrease was so rapid, that in 1747 they were supposed posed
not to exceed 1500. (Burke's Account of the European Settlements in
America, vol. ii. 193. Douglass' Summary of the British Settlements in
North America, vol. i. 185 186) The Five Nations, during the time of
their ascendancy and glory, extended their dominion on every side, and
levied tribute on distant tribes. Charlevoix (Travels in Canada, vol. i.
152. 167 -- 171.) speaks in strong terms of the power and fierceness of
the Iroquois, who, se early as 1720, had almost extirpated the
Algonquins, the Hurons, and other tribes of Canadian savages. Governor
Colden was well acquainted with their history, and in his character of
surveyor general of the province, he had access to the best means for
information. He wrote the first part of his history as early as 1727.
and he says, that the Five Nations carried their arms to the Carolinas,
and to the banks of the Mississippi, and entirely destroyed many Indian
nations. In 1684, Lord Howard, the Governor of Virginia, was under the
necessity of meeting the Five Nations in council at Albany, in order to
check by negotiation their incursions to the south. (Colden's History,
vol. i. 36 -- 45.) Their military spirit and daring enterprise were
continued to a later period. An intelligent old Mohawk Indian
communicated the fact to General Schuyler, that in his early life he was
one of a party of Mohawks who left their castles on an expedition
against the Chickasaws in Carolina, and be said that the expedition was
disastrous, and the Chickasaws met and destroyed them by an attack in
ambush; that only two of them, of which he was one, escaped. His
companion fled to St. Augustin, and he returned home to the Mohawk, and
supplied himself on his long journey with food by his bow and arrow. He
cautiously avoided all Indian settlements, and did not see the face of a
human being from the time that he fled from the battle in Carolina until
he reached the Mohawk castles. This anecdote I received in the year
1803, from General Schuyler, who appeared to place implicit confidence
in its accuracy. No person was more capable of giving precise
information on every subject connected with our colonial history, and
Indian affairs, than that very intelligent and accomplished man; and
since his name has been thus incidentally introduced, I cannot refrain
from adding, that he stands conspicuous in that proud roll of statesmen
and civilians, of patriots and heroes, who adorned the annals of
New-York in the most trying periods of its history, between the years
1755 and 1790. It may be truly said, that no part of the history of this
country excels the local history of the period I have alluded to, in
interesting events, or would be more worthy of the pen of some native
scholar and man of genius.
14. An able and well instructed writer in the North American Review, No.
iv. art. 5., has satisfactorily shown that the intentions of the
government of the United States, in their treatment of the Indians, and
in all their intercourse with them, have been uniformly just and
benevolent. But the system of treaty making, and assembling conventions
of Indians, pursued to a considerable extent on the part of the United
States, and accompanied with presents and annuities is supposed by
another writer, also able and well instructed, the American Quarterly
Review, No. vi. art. 5., to have been attended with much abuse in
practice, and with very injurious effects upon the moral and civil
condition of the Indian tribes. The subject of the treatment of the
Indians is one which appears to be, in every view, replete with
difficulty and danger. It seems to be almost impossible to stay or
arrest their rapid progress to ruin. The condition of the Indian tribes
is deplorably wretched. They consider their country lost to them, by
encroachment and oppression, and they are irreclaimably jealous of their
white neighbours. The restless and enterprising population on their
borders, and which, in a considerable degree, partakes of the fierce and
lawless manners of the hunter state, are exempt, no doubt, from much
sympathy with Indian sufferings, and they are penetrated with perfect
contempt for Indian rights. If it were not for the frontier garrisons
and troops of the United States, officered by correct and discreet men,
there would probably be a state of constant hostility between the
Indians, and the white borderers and hunters. They covet the Indian
hunting grounds, and they must have them; and the Indians will finally
be compelled by circumstances, annoyed as they are from without, and
with a constantly and rapidly diminishing population, and with
increasing poverty and misery, to recede from all the habitable parts of
the Mississippi valley, and its tributary streams, until they become
essentially extinguished, or lost to the eye of the civilized world.